This is a solution of Natural Environment Research that describes about Developing business

Natural Environment Research

The law of torts is an instrument used to regulate an individual’s conduct. Negligence is one of the torts which refers to the carelessness of an individual who failed to do what a reasonable man would do or done something which a reasonable man would not have done.1 The law is then aimed to encourage people to adhere to the proper standards of conduct that is the way they should behave in daily life.2 If a particular standard of conduct was not adhered to and damage has caused to someone else, it seems logical to compensate the innocent party for the wrong done.

In order to establish a successful negligence claim, one has to fulfil all four

elements which laid down in Lochgelly Iron v McMullan4. Firstly, there must be a duty of care owed by the defendant to the claimant. Secondly, the duty was breached by the defendant and the breach was equivalent to fall short from a reasonable man’s standard. Thirdly, the defendant’s breach of duty caused the damage or injury towards the claimant. Lastly, the damage or injury caused was not too remote or far-fetched. However, in this essay, the main focus will fall on the duty of care discussion. Establishing duty of care is the first hurdle that has to be overcame. Without fulfilling this element, the contract of negligence claim will be struck out immediately. Thus, it is important to discuss this element in details.

In United Kingdom (hereinafter UK), this area of law has been introduced and developed few centuries ago from Heaven v Pender 5 until Caparo Industries Dickman6. However, an Australian case of Sullivan v Moody7 had suggested that the Caparo’s approach is no longer representing the law in Australia.8 It was submitted that the Caparo’s approach had been in an ad hoc manner 9 which causes unpredictability in the law. In Australia, the approach for recognising a duty of care was the salient features approach which will be discussed in the later part. Then, it has to determine which approach is more suitable for a negligence claim. System Development of law in the area of duty of care

(a) Neighbour hood principle

In the past, when there is no privity to a contract (for example, one is not a party in the contract), he cannot pursue an action against the contracting parties. However, in the landmark case of Donoghue v Stevenson11, Lord Atkin introduced the neighborhood principle which laid down the ingredients to identify a duty of care, that are (a)there must be a reasonable foresight of harm to the claimant and (b)there must be a relationship of proximity between the parties.

This was affirmed by Home

  • Heaven v Pender [1883] 11 QBD 503.
  • Caparo Industries plc v Dickman [1990] 2 AC 605.
  • Sullivan v Moody (2001) 207 CLR 562.
  • Ibid (2001) 75 ALJR 1570, p.1578.
  • C F Stychin, ‘The Vulnerable Subject of Negligence Law’ (2012) Int. J.L.C 8(3), 337-353, p.338.
  • Winterbottom v Wright [1842] 10 M&W 109.
  • Donoghue v Stevenson [1932] AC 562.

12Ibid, p.580 where Lord Atkin stated “…You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question…” Office v Dorset Yacht13 where the borstal officers were held to owe a duty towards the yacht’s owner although the yacht was not damaged by them. However, this test seems to be too easily satisfied and thus policy consideration was introduced to restrict its application.

(b) Anns’s two-stage test

Lord Wilberforce in Anns v Merton 14 revised the neighbourhood principle and introduced a two-stage test. Firstly, one should ask whether there is sufficient proximity between the parties that could give rise to the foreseeability of damage. If so, a prima facie duty of care arises. One would then need to consider, are there any reasons that the duty of care should be negated, reduced or limited. In other words, it is presumed to have duty of care unless there is a policy objection to that duty.15 In Anns, the court allowed for the claim for pure economic loss but it was overruled by Murphy v Brentwood16Moreover, Anns’s two-stage test has allowed the duty categories to expand indefinitely 17 . For instance, in McLoughlin 18 , the court allowed damages for 13Home Office v Dorset Yacht Co Ltd [1970] AC 1004. Here, the borstal officers were not supervised those borstal boys. As a result, the latter went on a yacht and caused damage to it. A duty was owed because there is a reasonably foresight of damage that the borstal boys will caused to the yacht when the borstal officers were not in supervision. Further, there is a proximity between the parties because those boys’ conduct will directly affect the yacht owner.

Anns v Merton London Borough Council [1978] AC 728.

  • P Giliker and S Beckwith, Tort (3rd edn Sweet & Maxwell, London 2008), p.31.

Murphy v Brentwood District Council [1990] 2 All ER 908. Here, the facts was similar to Anns where the house had a defect which the claimant sought compensation for the damage done to the property. However, it was held that a defect is different from a damage. Repair work for a defect is merely pure economic loss and thus damages is not entitled. J Murphy and C Witting, Street on Torts (13th edn OUP, Oxford 2012), p.29. McLoughlin v O’Brian [1983] 1 AC 410. Here, the claimant was told by her friend that her husband and three children met a serious accident two hours ago. She then went to the hospital where she saw one.

The Caparo’s approach consists of three elements that are (a) the harm or injury to the claimant has to be reasonably foreseeable, (b) there must be proximity between the parties and (c) it is fair, just and reasonable to impose a duty on the defendant. Notably, none of these three elements takes priority. 25 Unlike AnnsCaparo’s test requires courts to consider all three elements together rather than satisfying one after another. In Anns, defendant has to identify the policy reason that could mitigate or object the prima facie duty imposed on him26, but in Caparo, it is for the court to consider, whether there is any policy reason which encourage the imposition of a duty. Application of Caparo’s test. Visit Now : Apple Marketing Principles

(a) Reasonable foreseeability

First element of this test requires one to identify whether a reasonable man, in the position of defendant, could foresee a risk of harm to the claimant or even a class of people when he is alleged to be negligent.27 Witting suggested that no precedents could be used to determine whether the harm is foreseeable, but it can be used as a guidance as to what amounts to reasonable.28 In Haley29, the court held that it was reasonably foreseeable that the claimant would be injured .

  • J Steele, Tort Law: Text, Cases and Materials (2nd edn OUP, Oxford 2010), p.162.
  • M Lunney and K Oliphant, Tort Law: Text and Materials (5th edn OUP, Oxford 2013), p.137.
  • C Turner, Unlocking Torts (4th edn Routledge, Oxon 2014), p.31.
  • C Witting, ‘Duty of Care: An Analytical Approach’ (1 March 2005) Oxford Journal of Legal Studies, Vol.25 Issue.1, 33-63, p.37.

Haley v London Electricity Board [1965] AC 778. Here, the defendant dug a trench in the street and a hammer was placed to warn people about the hole. However, the claimant (a blind man) failed to detect the hammer with his white stick. As a result, he tripped and fell which subsequently caused him to become deaf. precautions taken were only adequate for the need of those normal-sighted people. It was suggested that even if the particular class of persons is only a small portion of the population, this does not make them unforeseeable.30

However, In Palsgraf31, it was not reasonably foreseeable that the physical injury would cause to the claimant who was few feet away when the negligent act occurred. It could be submitted that it is only reasonable to foresee injury towards the defendant himself or perhaps anyone near the explosion.

For psychiatric injury cases32, courts are more relax to hold that the harm was reasonably foreseeable even thought it was not done directly to the claimant. Rogers submitted that harm could be reasonably foreseen to the claimant was due to the closeness between the claimant and the negligent act. 33 Thus, in other words, foreseeability is capable of being equivalent to proximity but the Caparo’s test treated them as separate elements, unlike the first stage in Anns.

(b) Proximity

Second element requires one to show the proximity between the parties. Following the interpretation from Donoghue, it has to identify that the defendant’s conduct was so closely and directly affected the claimant. Unlike the objective test in 30J Murphy and C Witting, Street on Torts (13th edn OUP, Oxford 2012), p.37. 31Palsgraf v Long Island Railroad 162 NE 99 (NY 1928). Here, the defendant’s employee negligently caused a passenger to drop a package containing fireworks. The fireworks then exploded and knocked over some metal scales several feet away which then stuck and injured the claimant. 32Hambrook v Stokes Bros [1925] 1 KB 141 and Dooley v Cammell Laird & Co [1951] 1 Lloyd’s Rep 271. 33W V H Rogers, Winfield and Jolowicz on Tort (18th edn Sweet & Maxwell, London 2010), p.166 foreseeability, proximity is an evaluation of facts.34 The court in Goodwill35 held that there was insufficient proximity and thus no duty owed by the doctor to the claimant because she might be any one of the indeterminate class of women who had sexual intercourse with her lover in the lifetime. It was also suggested that unless it was made known to the doctor that the vasectomy was done for the benefit of the claimant and her lover, there is no proximity between the parties.

In Sutradhar37, it was held that there is insufficient proximity between the research council and the resident in the water-contaminated area. It was decided that the research council could not owe a duty towards the people or even the Bangladesh’s government. Further, the research council does not have any control of the water system and thus the research project council is not obliged to acknowledge anyone in that residence.

Another clear illustration can be seen in the case of Hill39 and Swinney40. InHill, it was held that police does not owe a duty towards the public because there was C Witting, ‘The Three Stage Test Abandoned in Australia-or not?’ (2002) LQR 118, 214-221, p. 218. Goodwill v British Pregnancy Advisory Service [1996] 1 WLR 1397. Here, a vasectomy operation was performed by the defendant to a man. After three years of the operation, that man became claimant’s lover and had sexual intercourse with her. Knowing that the he had undergone a vasectomy surgery, the couple did not use any contraception. Yet, the claimant became pregnant and sued the doctor for negligently performed the vasectomy which then caused her to pregnant.

Ibid (Peter Gibson LJ).

Sutradhar v Natural Environment Research Council [2006] UKHL 33. Here, the defendant had conducted a research on the quality of drinking water in the claimant’s residence area. The claimant became ill after drank the water which contaminated with arsenic. He sued the defendant because the latter did not test the arsenic level in water and did not disclose the fact to the public that they had not done so.C Elliott and F Quinn, Tort Law (8th edn Pearson Education Ltd, Essex 2011), p.24. Hill v Chief Constable of West Yorkshire [1988] 2 All ER 238. Here, the claimant argued that the police had failed to apprehend the Yorkshire Ripper. As a result, the claimant’s daughter was murdered. It was claimed that if the killer could be arrested at the earlier stage, the claimant’s daughter would not have died. Swinney v Chief Constable of Northumbria Police (No.2) [1999] 11 Admin LR 811. Here, a woman gave information to the police about a criminal. It was stressed that it should be kept confidential. Otherwise, there will be a risk that the criminal will take revenge on her. Insufficient proximity and also policy consideration which will be discussed later. Insufficient proximity was due to the fact that the claimant’s daughter was just an ordinary girl in that area who could not be pre-identified by the police as the next victim.

Swinney was distinguished from Hill because there was a special relationship41which is sufficient proximate between the parties. In short, it could be submitted that proximity element can only be established when there is sufficient closeness between the parties and such closeness has to be determined on a case-to-case basis.

(c) Fair, just and reasonable

Last element of the test is that the courts have to consider whether to impose a duty on the defendant would be fair, just and reasonable. This always involved public authorities and the policy considerations concerned are usually prevention of floodgate litigation, defensive practice and conflict of duties. Floodgate litigation argument is that once courts recognise a situation of duty, it would allow many litigations on that particular issue as per the case of Weller42. Every potential claimant would bring their case to the court and this will reduce the efficiency of judicial performance in other cases. She gave information to the police and in return the police assumed a responsibility to keep it confidential. Weller & Co v Foot and Mouth Disease Research Institute [1966] 1 QB 569. Here, the foot and mouth virus escaped from the defendant’s premises and caused the claimant, auctioneers could not hold their auctions. They claimed the defendant’s negligent act had caused them to suffer loss but this was merely pure economy loss which is not recoverable. Notably, the court also considered the floodgate argument where by allowing this claim, it might then allow anyone from the public to sue the defendant for the release of the virus.

In Hill, the policy consideration as mentioned was that by imposing a duty on police would put them in a “detrimentally defensive frame of mind”43. In other words, when there is a duty imposed, police would compromise the manner used during their work. They will be fear for being sued by an individual if they did not put him into consideration when performing their work. Hence, this justifies the police immunity of litigation. Further, Brooks44 affirmed the policy consideration in Hill and Lord Steynopined that by placing a duty on police, the fearless and efficient performance of their duty in the interest of community would be impeded.

However, the immunity was removed in Swinney but it was decided on its own facts. It was thought that by imposing a duty on police to ensure that the information given will be kept confidentially, it would encourage more people to provide information which will be useful for combating crime. Another illustration of policy consideration can be seen in the case of Mulcahy46 where it was held that it is not fair, just and reasonable to impose a duty to an army during military operation. This is because fear of being sued by comrade will cause someone to act defensively and thus adversely affect the military operation.

  • Hill v Chief Constable of West Yorkshire [1989] AC 53 at 63.
  • Brooks v Metropolitan Police Commissioner [2005] UKHL 24.
  • Bid, Lord Steyn at 30.
  • Mulcahy v Ministry of Defence [1996] QB 732.

In X47, Lord Browne-Wilkinson opined that by imposing a duty on the local authority, it will conflict with their statutory duty. D48 affirmed X’s decision and opined that the duty towards the parents will conflict with the main purpose of the statutory duty that is to protect the welfare of children and especially their safety49. Besides, it also further require one not to disrupt the child’s family business environment. 50 This suggested that the equivalent duty should be owed to the child as well as to the parents. However, if there is a significant risk of child abuse, the child’s interests should be prioritised.51 From these two cases, it could be seen that when there is a conflicting interest against the statutory duties, the court is reluctant to impose a duty on the local authorities because it will distract and distort the authority’s priorities.

Another argument is that when imposing a duty on the local authorities, it will divert the resources allocated to them to something less important than their statutory duties. Lord Keith in Hill justified this argument by saying that this would be a great diversion of police manpower and attention from their statutory duty which is to suppress crime.53 In X, it was also submitted that the public resources should be 47X v Bedfordshire County Council [1995] 2 AC 633. Here, it was a conjoined of five cases where the two of them involved the negligence of local authorities in using their power in a child abuse investigation. The rest were concerned with the local authorities using their power in providing education to the need of special children. The court held that it is not fair, just and reasonable to impose a duty on the local authorities. In the reasoning, Lord Browne-Wilkinson opined that the statute had authorised the power to the local authorities to perform their work. Unless they perform their duty unreasonably, there will be no liability impose on them.

D v East Berkshire Community NHS Trust [2005] UKHL 23. Here, the fact is similar to the child abuse part of the case of X v Bedfordshire County Council where the parent was wrongly alleged to have abused their children.

  • Children Act 1989, s.17.
  • P Case, ‘The Accused Strikes Back: The Negligence Action and Erroneous Allegations of Child Abuse’
  • (2005) PN 21(4), 214-232, p.218.
  • Ibid, p.219.
  • H Wilberg, ‘Defensive Practice or Conflict of Duties? Policy Concerns in Public Authority Negligence Claims’ (2010) LQR 126, 420-447, p.423.
  • Hill v Chief Constable of West Yorkshire [1989] AC 53, (Lord Keith) at used for the public and not only for a single individual. Thus, it is not fair, just and reasonable to impose a duty on the local authority.

Is policy consideration appropriate?

When looking at a negligence case, in a person’s mind, there is always an idea as to whether a duty should be imposed on the defendant. This ideology was sometimes incorporated into policy consideration. Witting54 agreed that the law is unpredictable when policy consideration plays a part in the law. Drawing an analogy from the case of McFarlene55, it was held that birth of a healthy child is a blessing and compensation should not be allowed for raising the child who was resulting from a failure of vasectomy operation. However, there are some people, like the claimant, are of the opinion that he had incurred expenses for the vasectomy operation which his intention was not to have any children. Failure of that operation had caused him to spend his money in raising that child which then caused him to bear a heavier financial burden. When there is insufficient money to raise a family, it might occur more social issues such as homelessness, bankruptcy or even the worst criminal problems. Since there are two schools of thought, it could be said that the policy consideration does not provide certainty. It was suggested that Caparo’s approach was an ad hoc approach which requires judges to decide based on the individual facts. This allows judges to have their own discretion in deciding a case.

  • C Witting, ‘Duty of Care: An Analytical Approach’ (1 March 2005) Oxford Journal of Legal Studies,
  • Vol.25 Issue.1, 33-63 at 41.
  • McFarlene v Tayside Health Board [2000] 2 AC 59.

Sullivan v Moody – The law in Australia

Addressing the unpredictable manner of Caparo’s test, this Australian Sullivan’s case had rejected its application. The argument was that it was an invitation to formulate policy. Even the case had satisfied the element of foreseeability and proximity, it still requires the judges to determine whether it is fair, just and reasonable to impose a duty. Witting56 found it difficult to justify the priority of policies when there are several policies in place. He also further opined that it is difficult to ensure the policy consideration will be used consistently because different judges had different points of view.

Hence, in Australia, the test for recognising a duty of care was different from UK where Australian duty of care was identified through salient features approach. This approach was not preferable to the ad hoc manner which it was suggested that does not offer any definite guidance in decision-making.58 Rather, when there is a need to refer to policy consideration, the Australian courts will rule following any established policies.

In Perre60, McHugh J listed five features to be considered as to whether a duty exists in all cases of liability for pure economic loss. They are reasonably foreseeability of harm, any potential indeterminacy of liability, preservation of the autonomy or freedom of an individual, the claimant’s degree of vulnerability towards the harm caused by the defendant and whether the defendant had knowledge that his conduct.

  • C Witting, ‘Duty of Care: An Analytical Approach’ (1 March 2005) Oxford Journal of Legal Studies,
  • Vol.25 Issue.1, 33-63 at 41.
  • C Witting, ‘Tort Law, Policy and the High Court of Australia’ (2007) Vol.31, p.577.
  • Ibid, p.577.
  • Ibid, p.582.
  • Perre v Apand Pty Ltd [1999] HCA 36. will cause harm to the claimant.61 There are other features such as the degree of reliance by the claimant upon the defendant, the assumption of responsibility by the defendant, any conflicting duties arising from statutes or principles of law and other features.62 It can be seen that most of these salient features are similar to the policy considerations taken into account by UK judges when deciding a negligence claim. Witting also argued that Sullivan had wrongly rejected the Caparo’s approach.

In Cattanach64, the High Court of Australia allowed a claim for wrongful birth which is contradicting with the decision of McFarlene. The criticisms of the decision were came from Gleeson CJ and also Heydon J who both opined respectively that the parent-child relationship should not be an actionable issue under the law65 and the

impact of a new life in the family should not be estimated in monetary terms66. This case was one of the upsets of the Sullivan’s approach where it was still made by reference to policy consideration. Here, the policy reasoning considered by the court is the need to maintain good and healthy relationship between the parent and child.67

It was thought that by imposing a duty on the doctor will entitled the parents to damages which could then be used for the cost of raising that child. Witting also

  • Perre v Apand Pty Ltd [1999] HCA 36, para. 105-137.
  • Caltex Refineries (Qld) Ptd Ltd v Stravar [2009] NSWCA 258, para. 103.
  • C Witting, ‘The Three Stage Test Abandoned in Australia-or not’ (2002) LQR 214-221, p.221.

Cattanach v Melchior (2003) 215 CLR 1. Here, the doctor was performed a tubal ligation procedure on a lady on the request of the lady on the basis that she is in financial inability to support any new born baby. She informed the doctor that her right fallopian tube has been removed and the doctor was also too readily to accept her assertion without further specific investigation. However, the lady still conceived and thus she sued the doctor for the damages to the cost of raising this child.

  • Cattanach v Melchior (2003) 215 CLR 1, Gleeson CJ at 21.
  • Ibid, Heydon J at 126.
  • Ibid, Hayne J at 89. opined that this could help to avoid inevitable financial hardship and strengthen the family unit.


Since Sullivan’s salient features approach does not provide guidance as to how the factors mentioned to be used and which to be prioritised, it is merely similar to the Caparo’s incremental approach. In other jurisdictions such as Canada  ,Singapore70 , New Zealand 71 and most of the Commonwealth countries, they still followed the Anns’s two-stage test. However, in my opinion, the Caparo’s approach is still working well.

One uniqueness of the Caparo’s approach is its flexibility. Notably, the category of negligence will never closed and never stopped developing. Flexibility is an important feature in the law where it helps the law develops in accordance to the changing social circumstance and judges could use their own discretion to adjust and adapt their judgment so that it could achieve the target they aimed. Since it is arguably that this might result in unpredictable result and sometimes it might have error in the policy consideration73, the courts must proceed with some caution when recognizing new category of duty of care or consider any new policy.

  • C Witting, ‘Tort Law, Policy and the High Court of Australia (2007) Melbourne University Law Review, Vol.31, p.586.
  • City of Kamploops v Nielsen [1984] 2 SCR 2 and Cooper v Hobart [2001] SCC 79.
  • Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency [2007] 4 SLR(R) 100.
  • South Pacific Manufacturing Co Ltd v New Zealand Security Consultants and Investigations Ltd
  • [1992] 2 NZLR 282.
  • Donoghue v Stevenson [193] AC 562, Lord MacMillan at 619.
  • C Witting, ‘Tort Law, Policy and the High Court of Australia’ (2007) Vol.31, p.57.
  • Weller v Foot and Mouth Disease Research Institute [1966] 1 QB 569, Widgery J at 557.

Otherwise, the decision might not be justified. Another point of view by Witting is that policy reasoning always involves a discussion which is wider than the relative positioning of the parties. 75 This seems to be unfair to the party where one might not have considered as wider as the court did during daily life.

However, in my opinion, this encourages long-term product development of the law. For instance, the policy consideration held today is to protect the public rather than a single individual. On that decision, it might rule against him, but he will become part of the society in the future. The law of torts is to regulate people’s conduct and the law established today will became the precedent for the future. When he became part of the society, he is one of the protected party under the law.

In conclusion, the law in Caparo is still preserved. When there is an argument of negligence claim, first thing that has to be done is to establish the duty of care owed by the defendant to the claimant. To achieve this, three elements (reasonable foresee ability, factual proximity and policy consideration as to whether imposing a duty would be fair, just and reasonable) have to be established. The society will never stop developing and thus the law has to adapt to its changes by allowing judges to insert suitable policy consideration into the judgment. This in turns will create a precedent which binds further cases and when there is a new negligence situation arises, judges can spontaneously produce a judgment with quality and uphold justice.

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